Belgium
Piet Taelman*
1 A Brief Outline of the Development of the Pandemic
In early March 2020, the number of coronavirus infections in Belgium was increasing exponentially. As of 13 March 2020, Belgium went into a quasi-lockdown during the first wave of the pandemic. It was several weeks before the effect of the emergency measures became clear. From the beginning of April onwards, the figures of infections, hospitalisations and deaths started to fall gradually. By 4 May 2020, the number of infections had fallen sufficiently to allow a gradual easing of the measures.
At the end of July, virologists announced a second wave of the pandemic. The government reintroduced more stringent sanitary measures. From 19 October 2020, pubs, bars and restaurants were again closed, and teleworking in non-essential companies and services was again compulsory. A few days later a curfew was introduced. At the end of October, the measures were further tightened. On the date of the closure of this contribution,1this second wave has not yet run its course, although the number of infections and hospitalisations is decreasing considerably.
Belgium has been hit quite hard by Covid-19 as the total death toll stood close to 20,000 on 31 December 2020, or almost 1,700 deaths per million inhabitants. These numbers cannot be easily compared with those of other countries as Belgium counts not only confirmed Covid-19 deaths but also probable deaths. Analysis shows that the excess deaths that occurred in Belgium during both waves of the pandemic can be explained entirely by the Covid-19 deaths, unlike in many other countries.2
* Piet Taelman, Senior Full Professor Civil Procedure Law, Ghent University, Belgium;
Piet.Taelman@UGent.be.
1 31 December 2020.
2 https://multimedia.tijd.be/oversterfte/ (December 2020).
2 First There Was Chaos
Belgian courts reacted in scattered order during the first wave of the pandemic. As adequate protection material and software tools to organise videoconferences were not available, every president decided what measures to implement in his or her own court. The result was a jumble of widely divergent measures and instructions. Some court presidents even decided to – temporarily – completely shut down their courts.3A local bar president confided to me that during this first wave, communications to attorneys concerning the functioning of the courts (inter alia in relation to the initiation and/or handling of cases) needed to be updated almost daily.
3 The Management Committee Tried to Create Some Order in the Chaos
The Management Committee of the Courts and Tribunals4(the ‘Management Committee’) created a framework within which to deal with the pandemic in the judiciary. Unfortunately, the courts did not apply this framework uniformly.
The first attempt was the non-binding recommendations the Management Committee issued on 13 March 2020.5These recommendations aimed to ensure both the continuity of access to justice and protection of the health of all people involved. In practice, most recommendations laid the emphasis on protecting the health of magistrates and court staff. It only called for the continuation of urgent cases while advising review of timetables taking into account the urgency of the matters and the availability of magistrates, court staff and courtrooms adapted to the health crisis. The Management Committee also recommended flexibility in dealing with requests to postpone hearing of cases to a later date and to allow parties, even in disputes where they are legally required to appear in person,6to be represented by their attorneys.
3 For example, all Justice of the Peace Courts in Brussels remained closed during the first wave of the pandemic, while their court registries were only irregularly accessible by telephone.
4 This new managerial body was created in 2014 – together with the Management Committee of the Public Prosecutor – with a view to giving the Belgian judiciary greater managerial autonomy. It is responsible for the good overall functioning of adjudicating judges (the ‘sitting magistrates’) through the use of measures that ensure an accessible, independent, timely and high-quality administration of justice (Art. 181 Judicial Code).
5 https://legalnews.be/gerechtelijk-recht/aanbevelingen-ingevolge-corona-college-van-hoven-en-rechtbanken/
(December 2020).
6 Such as some family law cases (Arts. 1253ter/2 and 1253ter/4 Judicial Code).
On 16 March 2020, the Management Committee issued its first binding directives, which overruled any earlier contradictory decisions of court presidents.7As a general rule, the Management Committee stated that only urgent civil matters would be deliberated by judges on the basis of the written pleadings and supporting documents of the parties and that all hearings before the courts should be postponed until 19 April 2020. The initiation of new court proceedings, except for urgent matters, was postponed until the aforementioned date. The Committee stated that, as far as possible, a minimum level of service at court registries8should be ensured.
A ministerial decree of 18 March 2020 on emergency measures to limit the spread of the coronavirus Covid-199enumerated all so-called ‘companies in the critical sectors and essential services’ that should remain open during the health crisis and that were not obliged to switch to teleworking. It came as no surprise that ‘the institutions of Justice and related professions’ qualified as such an essential service.10
In line with this ministerial decree, the Management Committee amended its binding directives with the requirement that courthouses remain accessible.11From that moment onwards, filing of written pleadings and supporting documents needed to be done electronically. In order to limit physical contact at the court registries as much as possible, it even became temporarily possible to electronically initiate proceedings (e.g. writs of summons, petitions) via an online platform. Alternatively, ‘regular’ email could be used for the same purpose.12The bar associations, however, strongly discouraged the use of regular email in communication with the court registries as unsafe and probably not GDPR compliant.
In the implementation of these directives almost all courts issued special corona orders, in which parties were exhorted to replace the hearing by ‘written proceedings’.13This implies that parties or their counsel mutually agree to a purely written procedure whereby the judge will decide the case on the basis of the written pleadings and supporting documents. However, the judge may summon the parties to clarify their position on certain
7 www.rechtbanken-tribunaux.be/sites/default/files/nieuwsartikels/commu-coronavirus-iii-dirco-nl- 20200316.pdf (December 2020). These directives have been regularly updated in the course of the health crisis, inter alia, in the light of the updated legal framework, especially the Royal Decree No. 2 (seeinfra and www.rechtbanken-tribunaux.be/nl/nieuws/dwingende-richtlijnen-ingevolge-corona; www.rechtbanken- tribunaux.be/nl/nieuws/corona-update-1-november-2020 (December 2020)).
8 Preferably by electronic means, telephone or letter, in order to avoid any physical contact.
9 Belgian Official Gazette18 March 2020 (ed. 3).
10 This qualification has been reaffirmed in the Ministerial Decree of 28 October 2020 on urgent measures to reduce the spread of the coronavirus (Belgian Official Gazette28 October 2020 (ed. 3)).
11 Update of the mandatory directives by the Management Committee of 18 March 2020, www.rechtbanken- tribunaux.be/nl/nieuws (December 2020).
12 Update of the mandatory directives by the Management Committee of 18 March 2020, www.rechtbanken- tribunaux.be/nl/nieuws (December 2020).
13 Art. 755 Judicial Code.
issues orally. Some orders even provided for the automatic application of this written procedure unless one of the parties objected timely to it.14
Scholars severely criticised the Management Committee’s decision to require the treatment of only urgent civil matters during the pandemic as unjustifiable because it puts de facto ‘Justice on hold’.15The pandemic required the Management Committee to find a balance between two fundamental principles: access to justice and protection of the health of its actors. Undeniably, the Management Committee – despite paying lip service to the principle of access to justice – was concerned mainly with the protection of the health of the judges and the court staff. Its directives led to a suspension of almost all civil proceedings except for urgent cases. In my view a finer balance could have been struck between both principles, e.g. by continuing to allow new cases as the first steps in civil proceedings are mainly in writing.
4 Emergency Legislation
On 27 March 2020, an Act adopted by Parliament authorised the government to take measures in various areas, including the administration of justice, to combat the spread of the Covid-19.16On the basis of this Act the government issued the Royal Decree No. 2 of 9 April 2020.17
In its Article 1, it provided for an automatic extension of several procedural time limits, such as the statute of limitations, deadlines in the framework of pending proceedings (e.g.
for the filing of written pleadings), as well as the time limits for the lodging of appellate remedies (e.g. appeal, opposition).
The most contentious rules were set out in its Article 2, which stated, as a general principle, that all cases where the hearing was scheduled between 11 April and 17 June 2020, and for which all parties had submitted written pleadings, would be automatically taken under deliberation on the basis of the written documents submitted, without oral
14 M. Segers, “De schriftelijke rechtspleging, renaissance in coronatijden?”,De JuristenkrantNo. 407 (8 April 2020), 7.
15 See,e.g.J. Englebert,Service nécessaire à la Nation, la Justice ne pouvait pas être confinée, Limal, Anthemis 2020, 8 p., https://v3.globalcube.net/clients/englebert/content/medias/j_-englebert_la-justice-ne-pouvait- pas-e__tre-confine__e_def.pdf (December 2020).
16 Belgian Official Gazette30 March 2020, with entry into force on that day.
17 Belgian Official Gazette, 9 April 2020, with entry into force on that day. Such a ‘numbered Royal Decree’
has the same force of law as a formal Act. With a Royal Decree of 28 April 2020 (Belgian Official Gazette, 28 April 2020, with entry into force on that day), some of the measures adopted by the Decree No. 2 of 9 April 2020, were extended from 3 May till 17 June 2020. The relevance of some of these measures was questioned by the president of the Dutch-speaking Bar of Brussels as they came into being after almost four weeks of lockdown (Newsletter No. 20, 9 April 2020).Seefor a critical analysis of these rules: J. Englebert, Service nécessaire à la Nation, la Justice ne pouvait pas être confinée, Limal, Anthemis 2020, 57 p.
hearings.18 Two exceptions were created. First, if all parties objected to the written procedure, the case was postponed to a later date. Secondly, if at least one but not all parties objected to the written procedure, it was within the discretion of the court to decide to either (i) allow a hearing (possibly by video conference), (ii) postpone the case or (iii) take the case into consideration without oral pleadings.
This emergency legislation was followed by the Acts of 30 April and 20 May 2020 concerning various measures regarding the judiciary in the fight against the spread of the Covid-19.19These gave, inter alia, a legal basis to the aforementioned directive of the Managing Committee of Courts and Tribunals temporarily allowing the initiation of proceedings via an online platform.20Furthermore, they also provided for the limitation of certain seizures of assets against individuals,21a temporary exemption on the requirement for all judges who rendered the judgment as well as the assisting court registrar to sign the original of the verdict,22the appointment and swearing in of new members of the judiciary (judges, legal secretaries, court registrars) in writing,23the extension of time limits to submit documents for those seeking legal assistance, and so on.24
5 Periods of Crisis Can Give Rise to New Ideas, Which Should Not Be at Odds with the Prevailing Legal Culture
In 2015, in an attempt to ease the backlog of cases, the previous Minister of Justice, Koen Geens, announced, in his plan for justice, entitled ‘More Efficiency for More Justice’,25a
18 By way of derogation, the special rules on the hearing of minors (Art. 1004/1 Judicial Code) must always be respected.
19 Belgian Official Gazette4 and 29 May 2020.
20 Art. 4 Act of 20 May 2020, which entered into force on 18 March 2020 (till 30 June 2020). The period of validity of this provision has been extended three times, most recently to 31 March 2021 (Art. 49 Act of 20 December 2020,Belgian Official Gazette24 December 2020 (ed.1)).
21 Art. 9 Act of 20 May 2020.
22 The signature of the president and the assisting court registrar suffices (Art. 11 Act of 4 May 2020).
23 Art. 4 Act of 30 April 2020. By Art. 2 Act of 20 December 2020 (Belgian Official Gazette24 December 2020 (ed.1)) this became a definite, structural measure that originated in the social distancing rules but that will continue to exist in a post-corona world.
24 Other legislation provided for a temporary increase in the thresholds applicable in case of seizure of income from employment or other revenues, the temporary deferment of certain forms of enforcement against companies that were legally forced to close during the pandemic, the temporary extension of time limits for judicial sales of immovable property and voluntary sales in judicial form. The validity of all these provi- sions has been extended recently by Act of 20 December 2020, containing various temporary and structural provisions on justice in the context of the fight against the spread of the coronavirus (Belgian Official Gazette 24 December 2020 (ed.1)).
25 K. Geens,Plan justice – Une plus grande efficience pour une meilleure justice – Justitieplan – Een efficiëntere justitie voor meer rechtvaardigheid, 2015, https://cdn.nimbu.io/s/1jn2gqe/assets/Plan_Justice_18mars_
series of measures aimed at improving the proper administration and functioning of the judiciary, as well as the efficiency of the procedural rules, without making any concessions in terms of quality. It was the minister’s ambition to reduce the number of cases on appeal and to stimulate the proper treatment of cases at the first instance level. Within this framework he had been toying with the idea of effecting a thorough change in the course of civil proceedings. In particular, the minister proposed to set up a pilot project within the Business Courts, whereby, in principle, purely written proceedings would be used, without any oral hearing. However, each party would be able to lodge a request to be heard.26This proposal was not retained in the final version of the draft Act. A critical advisory opinion of the Council of State delivered during the lawmaking process led the minister to withdraw it because ‘it required further consideration and consultation’.27
In the wake of the first wave of the Covid-19 crisis, his idea of a purely ‘written civil procedure’ resurfaced. The then outgoing Minister for Justice, Geens, stated that the emergency measures had resulted in significant efficiency gains for the judiciary because they had led to an increased use of the written proceedings.28His assertions were, however, never substantiated with data. The proposal to generalise the written procedure, after it had been adjusted to take account of a few technical imperfections, met with fierce opposition from, among others, the bar associations and the High Council of Justice.29 They felt that oral hearings should remain the standard to ensure the continued confidence of litigants in the rule of law and accused the minister of using the pandemic as a lever for fundamental changes. The proposal was again withdrawn and was not put to the vote in Parliament.
Since 1 October 2020, Vincent Van Quickenborne assumed office as Minister of Justice in the government of Prime Minister Alexander De Croo. In a draft statutory text30the idea of a mandatory written procedure as a general rule cropped up again as Belgium is
FR.pdf (French) – http://justitie.belgium.be/sites/default/files/downloads/Plan%20justitie_18maart_NL.pdf (Dutch) (November 2020).
26 Draft Act of 15 July 2016 amending the legal status of the detainees and the supervision of prisons and containing various provisions on justice,Parliamentary Acts2015-16, No. 54-1986/1, www.dekamer.be/
FLWB/PDF/54/1986/54K1986001.pdf (December 2020). It was the minister’s intention to subsequently roll out this revised course of civil proceedings over the other courts.See also: K. Geens,Court of the Future, 25 October 2017, 31, No. 68, www.koengeens.be/fr/policy/court-of-the-future (December 2020).
27 Parliamentary Acts2015-16, No. 54-1986/1, 6; www.dekamer.be/FLWB/PDF/54/1986/54K1986001.pdf (December 2020).
28 B. Slegers and S. Verherstraeten, “Legislative proposal of 27 May 2020 containing various provisions on justice,inter aliain the context of the fight against the spread of the coronavirus”,Parliamentary Acts2019- 20, No. 55K1295/1, 34, www.dekamer.be/FLWB/PDF/55/1295/55K1295001.pdf (November 2020).
29 De Standaard23 June 2020, “Ultieme hervormingsplannen Geens stuiten op verzet”; www.standaard.be/
cnt/dmf20200623_04998979 (January 2021).
30 Draft Act of 25 November 2020 concerning various temporary and structural measures regarding justice in the fight against the spread of the coronavirus, Parliamentary Acts 2019-20, No. 55K1668/1, www.dekamer.be/FLWB/PDF/55/1668/55K1668001.pdf (November 2020).
going through the second wave of the pandemic. Once again, the bar associations opposed a revival of the written procedure beyond 17 June 2020, the date of expiry of the emergency rule. The Legislative Section of the Council of State and the Data Protection Authority also issued negative opinions on the proposal.31Again, the minister dropped this part of his proposal but stressed that he would return to this issue at a later date.32
For now, a repeated attempt to carry out a structural and fundamental reform of civil proceedings seems to have been thwarted successfully. A clear majority of attorneys are of the opinion that a hearing is valuable in sensitive33or – factually or legally – complex civil cases,34although there is significant variation in the duration of hearings between the different Belgian courts. Attorneys argue that the added value of a hearing consists of the possibility of interaction between the court, the parties and their counsel – often providing additional insights but also clarification and redress for litigants.35However, the Achilles’
heel of this argument is that interaction requires thorough preparation of the case on the part of both the judge(s) and the attorneys. Unfortunately, not all judges prepare their cases exhaustively, and often – especially in lower value cases – the attorneys who plead were not involved in the drafting of the written pleadings and are thus unable to answer any questions beyond the arguments set out in the pleadings.
6 Situation on the Ground – The Reflection of the Pandemic on the Practice of Civil Proceedings
Official figures on the impact of the Covid-19 crisis on the number of new court cases initiated in 2020 are not yet available. I learnt from a survey that I conducted among a limited number of magistrates and lawyers that, fairly generally, this number has decreased significantly since 2019. The first president of the Labour Court of Appeal of Ghent
31 The latter was concerned about the absence of guarantees of the confidentiality of hearings organised by videoconference. This seems to be a strange argument as the essence of a public hearing is, of course, that anyone is free to attend and that there can be no expectation of confidentiality whatsoever.
32 Report 10 December 2020 on a draft Act concerning various temporary and structural measures regarding justice in the fight against the spread of the coronavirus,Parliamentary Acts2019-20, No. 55K1668/7, 14, www.dekamer.be/FLWB/PDF/55/1668/55K1668007.pdf (December 2020).
33 For example, in family matters.
34 A survey conducted by the Ghent Bar under its members learned that 44% of the attorneys were in favour of reintroducing the oral pleadings, while 33% opted for maintaining the written procedure (Report 19 May 2020).
35 M. Segers, “De schriftelijke rechtspleging, renaissance in coronatijden?”,De JuristenkrantNo. 407 (8 April 2020), 7.
reported36a decrease of 16% in new cases.37The civil sections of the Antwerp Court of Appeal (which deal with civil, family, commercial and tax disputes) announced a drop of 8.83%.38The number of disputes closed per judge in that court also dropped in 2020 to 129.55 compared with 139.46 in 2019. The civil sections of the Ghent Court of Appeal reported similar figures: the number of judgments dropped by 10.1% in 2020 since the previous year and by almost 14% since 2018. However, its structural backlog did not grow in the course of 2020 owing to a decreased number of new cases.
Some Brussels law firms saw a fall of between 23% and 27% in the number of cases, especially among private clients. An Antwerp law firm, specialised in business and insolvency law, reported a decrease of 9.8% in new cases in 2020. The latter pointed to the protective measures taken by the government to counter the economic impact of the pandemic as the main cause of this decline.39The Ghent Business Court announced over 2020 a drop of almost 30% in insolvency proceedings in the province of East Flanders in comparison with 2019. A survey conducted by the Ghent Bar in May 2020 learned that at the time more than 90% of the attorneys were confronted with a slump in the number of new cases: 60% of them reported a reduction of at least 50%! This downward trend was confirmed by the declining input figures of several courts. The Ghent Business Court reported over 2020 for its two largest sections a decrease of approximately 10,5 % in new cases compared with 2019.
Courts and attorneys reported an increase in the backlog of cases owing to the quasi automatic deferment of almost all cases during the first wave. The Ghent Court of Appeal reported a clear drop in the number of judgments in this period (except in construction disputes, in which, owing to their technical nature, written proceedings are quite commonly used). Often one of the parties or attorneys opposed the use of a ‘written procedure’ or refused to treat the case orally via videoconferencing. Sometimes a tool for videoconferencing was lacking, unreliable or incompatible with the IT system of one of the attorneys. A significant portion of these cases, in particular when they are pending before courts struggling with a structural backlog, have not yet received a new trial date.
Even for those cases a new trial date was fixed, court clerks often announce shortly before the hearing that the duration of oral arguments is strictly limited and still urge the use of a written procedure.
36 State of affairs on 7 December 2020.
37 Broken down according to the nature of the cases, a decrease of 13% was observed in social security law and individual labour law cases. Particularly noteworthy is the strong decrease, by 26%, in the number of disputes related to the collective debt settlement procedure.
38 This downward trend has continued since 2015. The number of new cases in 2020 has decreased by 28%
since then, mainly because of legislative reforms between 2015 and 2018.
39 In particular, the possibility of extension of repayment of credits, social security contributions and taxes, as well as the moratoria to proceed to the attachments for sale and to institute bankruptcy proceedings.
Adjusting work processes required, in addition to a great deal of creativity, important efforts of both magistrates and court staff, which resulted in considerably more workload in 2020 (e.g. a lot of preliminary hearings). The pandemic also led – near the end of 2020 – to additional family disputes (e.g. a clear increase in the number of divorce proceedings), albeit without an increase in the structural backlog in family courts.
The caseload in 2021 is expected to grow, inter alia, owing to corona-related disputes (in which concepts such as ‘force majeure’ and ‘abuse of rights’ will play a central role, as a result of the health crisis and the sanitary measures taken to fight the spread of the virus) and the ending of a lot of (temporarily) supportive and protective measures by the government (which will likely result in additional bankruptcies).
7 To Conclude
The Belgian government has failed, over the past two decades, to achieve the digital transformation of the judiciary. This lack of digital tools and knowledge exacerbated the impact of Covid-19 as the judiciary was unable to easily switch to telework. In addition, the legal profession (judges and attorneys) has always been distrustful of change and has often resisted modernisation efforts. Furthermore, the different legal cultures in Belgium are an additional impediment to digitalisation as this requires a uniform approach. This stands in stark contrast to alternative forms of dispute resolution, e.g. arbitration, in which the use of digital tools has become the norm during the pandemic.
One can only hope that the Covid-19 crisis has created the momentum for actual digitalisation of the judiciary. At least, the current Minister of Justice is a strong proponent of further digitalisation. According to his General Policy Statement on Justice of 4 November 2020,40one of the key focus points for the coming years will be the digitalisation of the judiciary.
Making any further reliable predictions on the aftermath of this health crisis on the administration of law is essentially impossible, as its ultimate effects are still unforeseeable.
40 General Policy Statement of the Ministry of Justice,Parliamentary Acts 2019-20, No. 55K1580/16, www.dekamer.be/FLWB/PDF/55/1580/55K1580016.pdf (November 2020).
![[PDF] Débuter avec le logiciel Nikon Capture étape par étape | Cours informatique](data:image/gif;base64,R0lGODlhAQABAIAAAP///wAAACH5BAEAAAAALAAAAAABAAEAAAICRAEAOw==)